Amicus Brief: Arkansas Anti-BDS Law Violates the First Amendment

States can't force businesses to align their political views with the government

Alexandria, VA – The Institute for Free Speech and the Foundation for Individual Rights in Education (FIRE) yesterday filed an amicus brief stating that an Arkansas law is unconstitutional because it requires that government contractors pledge not to boycott Israel. The ability to engage in political boycotts is a crucial component of the right to speech and association, the brief explains.

“Political boycotts are protected by the First Amendment and have a long tradition in American politics. From boycotts of British goods in the colonial era, to the Montgomery bus boycott of the civil rights movement, Americans have always used their pocketbooks to express their opinions and advocate for change,” said Institute for Free Speech Legal Director Allen Dickerson.

The pledge requirement was passed by the Arkansas General Assembly and signed into law by Governor Asa Hutchinson in 2017. The Arkansas Times refused to sign the pledge and was consequently penalized by the state.

The Times, represented by the ACLU of Arkansas, then challenged the law in December 2018. The case was dismissed by a U.S. District Court on January 23, 2019. The Times appealed to the Eighth Circuit Court of Appeals in February.

Government may prevent boycotts aimed at undermining economic competition, but that is not what Arkansas’ law does, argue the Institute for Free Speech and FIRE. Instead, the law targets the “Boycott, Divestment and Sanctions movement,” also known as BDS, a campaign that seeks to pressure Israel into adopting certain policies.

Courts must examine boycotts holistically to determine whether they are politically-motivated, the brief explains.

“[T]he district court erred in breaking down the boycott component by component to see whether each one would individually ‘fall under the First Amendment.’ As noted above, a boycott is more than the sum of its parts, and its nature and context as a whole must be examined to determine if it is a protected political boycott. The nature and context of the boycotts prohibited by Arkansas squarely place them among the political boycotts protected by the First Amendment,” according to the brief.

The Institute for Free Speech has previously criticized other measures aimed at restricting the ability of groups that receive public money to engage in boycotts. When New York Governor Andrew Cuomo issued an Executive Order in 2016 requiring state agencies to divest from institutions or companies that support boycotts of Israel, IFS Chairman Bradley A. Smith and President David Keating wrote a letter to Governor Cuomo calling the Order “an unacceptable and unconstitutional assault on freedom of speech and expression.”

The case, Arkansas Times LP v. Waldrip, is before the U.S. Court of Appeals for the Eighth Circuit. To read the brief by IFS and FIRE, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.